What happens when someone has a decedent’s will but refuses to produce the will? Under Ohio law, there is a procedure to enforce someone to produce a decedent’s will. The procedure to enforce production of a will under Ohio law is set forth in Ohio Revised Code § 2107.09
Why Would Someone Withhold Or Refuse To Produce A Will?
There are many reasons why someone who has an original will of an Ohio decedent might not produce the will.
Sometimes the reasons are completely innocent. For example, the holder of the will might not even be aware that the decedent has died. Often times the Ohio probate attorney that drafted the will holds the original on behalf of the testator.
Other times, the reasons might be more nefarious. Perhaps the will is being held by someone who will take more under the laws of intestacy than the distribution pattern under the will, and is trying to prevent the will from being probated.
Who Can Enforce Production Of A Will In Ohio?
The executor or any interested person may cause the will to be brought before the probate court of the Ohio county in which the decedent was domiciled. Therefore, to enforce the production of a will under Ohio law, you have to (1) be an interested person, i.e., have some stake in the probate and production of the will, and (2) know who has the will. Read How To Find Out If Someone Has A Will.
The Ohio court can order that the person having custody or control of the will produce it before the court for the purpose of being proved.
What Happens If Someone Intentionally Withholds A Will Under Ohio Law?
If someone is found to be intentionally concealing or withholding a will, Ohio law provides that they can be jailed. The person can also be held liable for damages caused for their refusal to produce the will.
Section 2107.09 of the Ohio Revised Code states:
If the person having the custody or control of the will intentionally conceals or withholds it or neglects or refuses to produce it for probate without reasonable cause, the person may be committed to the county jail and kept in custody until the will is produced. The person also shall be liable to any party aggrieved for the damages sustained by that neglect or refusal.
What Happens If A Beneficiary Withholds A Will In Ohio?
Ohio law also contains consequences for a beneficiary under a will that intentionally withholds a will from the court or fails to produce the will.
Ohio Revised Code § 2107.10(A) states:
No property or right, testate or intestate, shall pass to a beneficiary named in a will who knows of the existence of the will for one year after the death of the testator and has the power to control it and, without reasonable cause, intentionally conceals or withholds it or neglects or refuses within that one year to cause it to be offered for or admitted to probate. The property devised or bequeathed to that beneficiary shall pass as if the beneficiary had predeceased the testator.
In sum, if a beneficiary who knows of a will and has the power to control the production of the will intentionally conceals or withholds it or neglects or refuses within one year to cause it to be offered for or admitted to probate, that beneficiary forfeits their bequest under the will. This statute discourages a beneficiary from withholding a will because they stand to inherit more under the laws of intestacy.
Section (B) of § 2107.10 similarly discourages a beneficiary from allowing probate to proceed in a county other than the Ohio county where probate is proper:
No property or right, testate or intestate, passes to a beneficiary named in a will when the will was declared valid by a court pursuant to division (A)(1) of section 5817.10 of the Revised Code, the declaration took place in a county different from the county in which the will of the testator would be probated under section 2107.11 of the Revised Code, and the named beneficiary knew of the declaration and of the death of the testator and did not notify the judge of the court in which the will was declared valid. This division does not preclude a named beneficiary from acquiring property or rights from the estate of the testator for failing to notify a judge of that court if the named beneficiary reasonably believes that the judge has previously been notified of the testator’s death.
